Wed. Mar 3rd, 2021


Counting mail-in ballots in Lehigh County, Pa., November 4, 2020. (Rachel Wisniewski/Reuters)

Elections are not like criminal cases.

On the matter of vote fraud, there is law and there are facts. We’ll hear plenty about fraud, but we’ll have to remind ourselves to ask: Did it make a difference? Even if the Trump campaign has potential claims in law, they would collapse if, as a matter of fact, they would not affect the outcome of the race.

Pennsylvania, which I’ve discussed extensively over the last three weeks, is a good example.

As repeatedly recounted (most recently, in Wednesday’s column), the state supreme court, by fiat, ordered a the three-day extension of the November 3 Election Day deadline for the state’s receipt of mail-in votes — i.e., until close-of-business November 6. I believe this was an unconstitutional usurpation of the state legislature’s power to set the rules for elections. If so, that would give the Trump campaign a basis to seek the Supreme Court’s intervention. Indeed, four justices on the high court were poised to grant a stay against the state court’s order in mid-October; and just last week, three of those justices induced Pennsylvania to agree to segregate the ballots received during the three-day extension, anticipating that the Court might review the matter on an expedited basis after Election Day.

In addition, the Trump campaign could also argue that there was a significant potential for vote fraud because of the presumption the Pennsylvania court imposed on its extension order: Ballots are to be deemed timely submitted even if they lack a legible postmark — or any postmark at all — proving they were mailed on or before November 3. Obviously, this creates the possibility that ballots could be harvested and submitted post-election without postmarks — theoretically, in large enough quantities to change the result that would have been obtained if only the ballots truly submitted by November 3 were tallied.

So we have a viable legal claim and a potential for fraud in a battleground state that, it was reasonably anticipated, could decide the election. Clearly, that was why a number of Supreme Court justices were inclined to intervene, even though the Court would understandably prefer not to be entangled in electoral politics, as it controversially was in the 2000 Bush-Gore contest.

And yet . . .

All of this only matters if there are enough late-arriving ballots to change the result. Right before I appeared on Fox News on Wednesday afternoon to talk about this legal terrain, Bill Hemmer interviewed an election official from Luzerne County, northeastern Pennsylvania’s most populous county with over 320,000 people. He explained that, for all the legal huffing and puffing over illegality and fraud, only about 200 ballots arrived by mail there on Wednesday. Obviously, each day we get further from November 3, we should expect fewer ballots, to the point where it is down to a trickle on Friday.

Now, there are 67 counties in Pennsylvania. But if that is the late-arrival rate in Luzerne, most counties are going to have fewer — many will have significantly fewer. As I write this post at 6 p.m. Wednesday evening, Pennsylvania is reporting that 87 percent of the statewide vote is in, and President Trump leads by 4.8 percent, which translates to over 292,000 votes.

Now, it is certainly possible that the remaining 13 percent of the vote could break heavily for former vice president Joe Biden, and that he could eke out a razor-thin win, in which case every vote might count. If that happens, there could be a convincing legal claim.

It is at least equally likely, though, that either 1) Trump will hold on and win the state, or 2) the vote will break so sharply for Biden that he (Biden) wins by one or two points. In the first of those latter two scenarios, the likely illegality and potential fraud would be irrelevant. And even if Biden wins (the second of those scenarios), it only matters if so many Biden ballots arrived between November 4 and 6 that they could have been the difference-maker, shifting the contest from Trump to Biden.

If it turns out that we are talking only about a few thousand late-arriving votes, and either candidate has prevailed by thousands more than that, it’s much ado about nothing.

Elections are not like criminal cases. In a criminal prosecution, if the prosecutor alleges that the defendant committed a $1 million fraud but can only prove a $10,000 fraud, the defendant is still guilty of fraud and could face the significant consequences of a felony conviction. In an election, if one candidate alleges fraud and can prove some fraud but not enough to alter the result, there are no significant consequences as far as the election is concerned. (There could be serious consequences for any person found to have committed vote fraud, but that has no bearing on the outcome of the election.)

The point is that we must keep ourselves grounded in concrete fact in the coming days, as we listen to allegations that courts or bureaucrats lawlessly overrode the state legislatures’ power to set election rules, and of potential or actual fraud. Our first question should always be: “Even if everything you claim is true, would it have changed the outcome?” If the answer is no, that’s really the end of the matter, even if what a court did was illegal and even if there was some provable fraud.





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